Today we revisit the Mental Health Act 2007 (NSW) s 20 – and for earlier discussions see https://emergencylaw.wordpress.com/?s=%22mental+health+act+2007%22.
This question is timely given a recent Australasian College of Paramedicine webinar. Given I was a present at that webinar this answer will draw on material prepared for that and borrowed from others so it may wonder beyond that necessary to answer the question. The question is:
I’ve been told by several hospital staff that a person cannot be sectioned if they are in police custody and may only be assessed, transported, treated etc either under the MHA or the law. When I relay this information to police they do not agree and have tried to pressure me into sectioning people who I don’t think I can legally section. Eg a patient in police custody for breach of an AVO had a razor blade hidden in his waistband, the patient produced this and slit his wrists whilst in the cells of a police station. Patient admitted to suicidal ideation, needed stitches for their wounds and obviously a mental health assessment at hospital which they were agreeable to all forms of transport and treatment to facilitate this. The police sergeant then asks if I’m happy to section on this information, I told him I won’t. A – because he is voluntary and B – because he is in police custody he cannot be sectioned. We had a big argument and he told me in all of his experience he has never heard of this and was quite unprofessional. Anyway, could you please advise on what is right legally in this situation?
The problem I have with the question is ‘what does section mean?’ I asked and my correspondent said:
By “sectioned” I mean to place someone under section 20 or 22 of the mental health act, I suppose we just use this as slang with the police and/or hospital staff.
As I’ve said before, you cannot ‘place someone under section 20’ because that is just not what the section says. Section 20 says:
20 DETENTION ON INFORMATION OF AMBULANCE OFFICER
(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.
(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.
There is nothing in s 20 to say that it cannot be relied upon when a person is in police custody. If a person in police custody appears to an ambulance officer ‘to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then subject to the discussion below the ambulance officer ‘may take the person to a declared mental health facility’.
Therefore what a police sergeant is asking if he or she asks are you ‘happy to section on this information?’ is ‘will you take the person to a declared mental health facility?’ If you don’t think the person ‘appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then the answer would be ‘no’. If you do think the test is met, the answer would be ‘yes’ provided the patient consents – and we’re told this patient does consent (see Revisiting the role of police and paramedics when dealing with the mentally ill in NSW (September 14, 2019)).
As I’ve said before I just don’t think s 20 says what NSW Ambulance and NSW paramedics think it says. It does not say that a person who is competent but refuses treatment (which is not the case in this story) can be treated against their wishes by NSW paramedics. In support of that I note the following:
- Section 20 does not say an ambulance officer may ‘detain’ or ‘apprehend’ a person or refer to ‘involuntary admission and detention’. The heading does not say ‘detention by an ambulance officer’. It is detention by others ‘on the information of an ambulance officer’. The power to detain is given to the mental health facility (s 18(1)(b)). The ambulance officer can take them to the facility and the facility can detain them on the basis of the ambulance officer’s view and before they are assessed by a medical practitioner.
- It says ambulance officers may ‘take’ a person to a facility. I read that as giving permission to travel to a mental health facility rather than say the nearest emergency department. It allows them to bypass other facilities if the criteria are met. Compare s 20 to
- s 18 – ‘A person may be detained in a declared mental health facility…’
- s 19 – ‘A person may be taken to and detained …’ and the doctor must be satisfied that ‘that involuntary admission and detention are necessary’
- s 22 – ‘A police officer … may apprehend the person and take the person …’
- The Mental Health Act assumes that the mentally ill may and where they can, must consent to treatment. If that right – to make autonomous decisions – is to be overriding it must be clear and unambiguous. Section 20 is neither.
- Section 20 does not compel anyone else to do anything. A mental health facility may not must detain a person brought by ambulance. Even if s 20 allows paramedics to take a person against their competent refusal, they are free to leave the facility once they have arrived unless the facility elects to exercise their powers under s 18.
I know NSW Ambulance thinks consent is irrelevant (see for example Protocol A3 and Protocol MH3) but I just don’t think that is what the section says. Protocol MH3 says (emphasis in original) if ‘the PATIENT IS WILLING to be transported to hospital voluntarily there is not need to enact Section 20 …’ That confirms my correspondent’s position where the patient is ‘agreeable to all forms of transport and treatment’ but in any event, it still does not make sense. If the patient is willing to be transported to hospital voluntarily’ then s 20 says that the paramedics may take them there. Paramedics don’t have to do anything to ‘enact’ section 20. Section 20 is engaged when they select a ‘declared mental health facility’ as their destination. That decision enlivens s 18 such that the facility that receives the patient may choose to detain them based on the information provided by the ambulance officers pending examination.
As a rule of statutory interpretation every word must have meaning. Both police and ambulance officers have a power to ‘take’ a person to a mental health facility (ss 20 and 22) but only police have a power to apprehend (ss 21 and 22). If the word ‘take’ (in s 20) were sufficient to mean ‘take contrary to the patient’s refusal’ then the term ‘apprehend’ in ss 21 and 22 has no role to play. I am reassured that the use of the word ‘take’ in s 20 does not mean ‘take against the wishes of a competent person’ because of the language used in comparable legislation:
- Mental Health Act 2015 (ACT) s 80: ‘A police officer or authorised ambulance paramedic may apprehend a person …’
- Mental Health and Related Services Act 1998 (NT) s 31: ‘A paramedic may detain a person …
- Mental Health Act 2007 (NSW) s 21: ‘A police officer to whose notice …a request for assistance by an ambulance officer … is brought must, if practicable– (a) apprehend …’ and s 22: ‘A police officer … may apprehend …’
- Public Health Act 2005 (Qld) s 157B: ‘… ambulance officer or police officer may detain the person …’
- Mental Health Act 2009 (SA) s 56 ‘An authorised officer [which includes an ambulance officer] … may take the person into his or her care and control …’
- Mental Health Act 2013 (Tas) s 17: An MHO [Mental Health Officer which includes appointed ambulance officers] or police officer may take a person into protective custody …’
- Mental Health Act 2014 (Vic) s 351: A police officer, or a protective services officer on duty at a designated place, may apprehend a person …
- Mental Health Act 2014 (WA) s 156: ‘A police officer may apprehend a person if the officer reasonably suspects that the person …’
We can see what the legislation looks like if you want to deprive a person of their liberty. In NSW ss 21 and 22 do look like that; s 20 does not.
My view is that in NSW, Victoria and WA if the person does not have the capacity to consent, then a paramedic can provide treatment that is reasonably necessary and in the patient’s, best interests. And that may include sedation and transport to care- and that’s true if they’re mentally ill or have a physical injury eg a head injury. That’s the common law doctrine of necessity and often replicated in guardianship type legislation. If the patient can consent and does, then paramedics can provide appropriate care. If the patient can consent but chooses not to then their decision has to be respected even if they are mentally ill (PBU & NJE v Mental Health Tribunal  VSC 564; see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).
Where a person is mentally ill and meets other criteria, they can be detained against their will by a paramedic in the ACT, the NT, Queensland, South Australia and Tasmania. In NSW, Victoria and WA the power to apprehend the person, that is a power to deprive the person of their liberty – their freedom to come or go – is a power to be exercised by police. Though police, having exercised those powers, may ask ambulance for assistance.
In NSW, the value of s 20 is that the mental health facility can say ‘the paramedics think you’re mentally ill and they’ve brought you here so on the basis of their observations and assessment, we’re going to detain you ‘on the information of the ambulance officer’. The patient may come with the ambulance officers voluntarily but can then be detained by the facility. Section 20 is a condition precedent for the health facilities decision to detain, it does not say that the paramedics can treat a competent person against their will even though NSWAS thinks it does and even if that is what the Parliament intended. If that is what they intended, they should and could have said so (as the Parliaments in other states did). In NSW they did provide for ‘apprehension’ by police, but not by ambulance officers.
Let us return then to the given scenario:
… a patient in police custody … had a razor blade hidden in his waistband, the patient produced this and slit his wrists whilst in the cells of a police station. Patient admitted to suicidal ideation, needed stitches for their wounds and obviously a mental health assessment at hospital which they were agreeable to all forms of transport and treatment to facilitate this.
An ambulance is called. The patient has physical wounds that need stitching. Section 20 says that the ambulance officers may take the patient to ‘a declared mental health facility’. Let us assume the local ED is not ‘a declared mental health facility’.
The sergeant asks ‘are you happy to section on this information?’ But the question means ‘Are you happy to transport the patient to a declared mental health facility?’ to which the answer would, presumably, be ‘no, as they need to go to ED to have their wounds attended to’. If the local ED was a ‘a declared mental health facility’ the question is irrelevant as you are going to take them there anyway.
The hidden, but wrong meaning is that if you were to elect to take them ‘under s 20’ then they are not free to leave, but that is not what s 20 says. At best it says the declared mental health facility may detain them if the circumstances of the Act are met, but presumably they would treat the person as a voluntary patient given that he is consenting to treatment. If the person is not free to leave it’s because he is in police custody for whatever offences he is alleged to have committed and remains in custody until a bail decision is made.
- A person who is mentally ill and consents to treatment should be not be treated as an involuntary patient by anyone – a mental health facility, a paramedic or a police officer.
- A person who appears to police to be mentally ill and who has committed a crime or attempted suicide may be apprehended by police and taken to a mental health facility.
- A person who appears to an ambulance officer to be mentally ill or mentally disordered may be taken to a mental health facility by a paramedic but may not be ‘apprehended’ or ‘detained’ by that paramedic. Those words do not appear in s 20; they do appear in ss 21 and 22. If the person has the capacity to give or refuse consent and they don’t want to come; they don’t have to. If they do not have the capacity to give or refuse consent, then treatment that is reasonably necessary and in their best interest, including transport to a declared mental health facility (s 20) and restraint or sedation may be given (Mental Health Act 2007 (NSW) s 81; In Re F  2 AC 1 and see The doctrine of necessity – Explained (January 31, 2017)). Mental illness does not however necessarily mean a person lacks capacity (PBU & NJE v Mental Health Tribunal  VSC 564)),
- If an ambulance officer, relying on s 20 takes a person to a hospital or a mental health facility, that does not impose any restriction on the patient’s liberty once they get to that facility. It empowers the mental health facility to make a decision to detain the person (s 18) but does not compel them to do so.